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Sue and Settle: Regulating Behind Closed Doors
What is Sue and Settle?
"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process. The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties. These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties. As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups. These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the Clean Power Plan.
UPDATE – Sue and Settle Practice to End: On October 16, 2017, EPA Administrator Scott Pruitt issued a directive to end “sue and settle” practices within the EPA. The directive and accompanying memo includes new policies and procedures to increase transparency, public engagement, and accountability. Major changes include providing advance notice to the public of any notice of intent to sue or proposed settlement agreement, allowing the public to weigh in on proposed or modified consent decrees and settlements, and to exclude attorney fees and litigation costs when settling with suing parties. The directive incorporates recommendations and research conducted by the U.S. Chamber of Commerce, which can be found in the May 2017 “Sue and Settle Updated: Damage Done 2013-2016” report.
Database of Settlements: In August 2017, the U.S. Chamber of Commerce received a Freedom of Information Act request response from the Department of Justice's Environmental and Natural Resources Division with a database listing all Clean Air Act, Clean Water Act, and Endangered Species Act settlements between January 20, 2009 and January 19, 2017. The database of settlements, which is accessible HERE, is divided in three sections: (1) Environmental Defense, (2) Environmental Enforcement, (3) Wildlife. Additionally, in October 2017, the Chamber received a FOIA request response from the EPA including Clean Air Act and Clean Water Act settlement agreements and consent decrees from between 2015 and 2016.
Recent Notices of Intent to Sue on EPA's Website
|2/1/2018||CAA, Sierra Club |
For failure to timely grant or deny a petition to object to the proposed Title V permit renewal for the Tennessee Valley Authority’s Gallatin Fossil Plant.
|1/24/2018||CAA, Association of Irritated Residents |
Failure to Take Action on the San Joaquin Valley 2016 Plan for the 2008 8-Hour Ozone Standard.
|1/17/2018||CAA, Chesapeake Bay Foundation, Inc. |
Failure to act on Delaware's Clean Air Act Section 126 Petition regarding the Conemaugh Generating Station located in Indiana County, Pennsylvania.
|1/3/2018||CAA, State of Delaware, Department of Natural Resources and Environmental Control |
Failure to Approve or Disapprove Delaware's Clean Air Act Section 126 Petition Regarding the Conemaugh Generating Station, Located in Indiana County, Pennsylvania.
For a full list of EPA's Notices of Intent to Sue, visit http://www.epa.gov/ogc/noi.html.
What is New in Sue and Settle?
- 1/31: The Hill | EPA delays Obama water rule
- 1/31: Alaska Public Media | Enviros sue over King Cove road
- 1/31: NRDC | With EPA Concessions, NRDC Drops Landfill Emissions Lawsuit (blog)
- 1/30: The Washington Examiner | Environmentalists sue Trump over coal pollution ahead of State of the Union
- 1/30: E&E | Enviros sue over Mexican wolf recovery (subscription required)
- 1/27: The Hill | Top environmental group preparing to sue Trump’s EPA
- 1/24: CNN | Scientists sue EPA over advisory board cuts
- 1/23: The Daily Campus | Connecticut and New York sue EPA over failure to control ozone pollution
- 1/16: E&E | Could 'sue-and-settle' ban backfire for Trump team? (subscription required)
- 1/11: High Country News | More prime sage grouse habitat is open for drilling
- 1/9: KTUU | EPA brings 'sue and settle' ban into 2018, environmentalists concern grows
- 1/4: Inside EPA | Fluoride Case Ruling May Open Door To More TSCA Petitions, Attorneys Say
See all -- Sue and Settle News Archive
What are the Economic Implications of our Findings?
Interactive List of All Sue & Settle Cases
Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.